Jones v. United States (99-5739)
178 F.3d 479, reversed and remanded.
Opinion of the Court
Supreme Court of the United States
Jones v. United States
No. 99-5739
DEWEY J. JONES, PETITIONER v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SEVENTH CIRCUIT
[May 22, 2000]
Justice Ginsburg delivered the opinion of the Court.
It is a federal crime under 18 U.S.C. § 844(i) (1994 ed., Supp. IV)
to damage or destroy, "by means of fire or an explosive, any ...
property used in interstate or foreign commerce or in any activity
affecting interstate or foreign commerce." This case presents the
question whether arson of an owner-occupied private residence falls
within §844(i)’s compass. Construing the statute’s text, we hold that an
owner-occupied residence not used for any commercial purpose does not
qualify as property "used in" commerce or commerce-affecting activity;
arson of such a dwelling, therefore, is not subject to federal
prosecution under §844(i). Our construction of §844(i) is reinforced by
the Court’s opinion in United States v. Lopez, 514 U.S. 549 (1995), and
the interpretive rule that constitutionally doubtful constructions
should be avoided where possible, see Edward J. DeBartolo Corp. v.
Florida Gulf Coast Building & Constr. Trades Council, 485 U.S. 568, 575
(1988).
I
On February 23, 1998, petitioner Dewey Jones tossed a Molotov
cocktail through a window into a home in Fort Wayne, Indiana, owned and
occupied by his cousin. No one was injured in the ensuing fire, but the
blaze severely damaged the home. A federal grand jury returned a
three-count indictment charging Jones with arson, 18 U.S.C. § 844(i)
(1994 ed., Supp. IV); using a destructive device during and in relation
to a crime of violence (the arson), 18 U.S.C. § 924(c); and making an
illegal destructive device, 26 U.S.C. § 5861(f). Jones was tried under
that indictment in the Northern District of Indiana and convicted by a
jury on all three counts.1 The District Court sentenced him, pursuant to
the Sentencing Reform Act of 1984, to a total prison term of 35 years,
to be followed by five years of supervised release. The court also
ordered Jones to pay $77,396.87 to the insurer of the damaged home as
restitution for its loss. Jones appealed, and the Court of Appeals for
the Seventh Circuit affirmed the judgment of the District Court. 178
F.3d 479 (1999).
Jones unsuccessfully urged, both before the District Court and on
appeal to the Seventh Circuit, that §844(i), when applied to the arson
of a private residence, exceeds the authority vested in Congress under
the Commerce Clause of the Constitution, Art. I, §8, cl. 3. Courts of
Appeals have divided both on the question whether §844(i) applies to
buildings not used for commercial purposes,2 and on the
constitutionality of such an application.3 We granted certiorari, 528
U.S. 1002 (1999), and framed as the question presented:
"Whether, in light of United States v. Lopez, 514 U.S. 549 (1995), and
the interpretive rule that constitutionally doubtful constructions
should be avoided, see Edward J. DeBartolo Corp. v. Florida Gulf Coast
Building & Constr. Trades Council, 485 U.S. 568,575 (1988), 18 U.S.C. §
844(i) applies to the arsonof a private residence; and if so, whether
its application to the private residence in the present case is
constitutional."
Satisfied that §844(i) does not reach an owner-occupied residence that
is not used for any commercial purpose, we reverse the Court of Appeals’
judgment.
II
Congress enacted 18 U.S.C. § 844(i) as part of Title XI of the
Organized Crime Control Act of 1970, Pub. L. 91-452, §1102, 84 Stat.
952, "because of the need ‘to curb the use, transportation, and
possession of explosives.’ " Russell v. United States, 471 U.S. 858,
860, n. 5 (1985) (citation omitted). The word "fire," which did not
appear in §844(i) as originally composed, was introduced by statutory
amendment in 1982.4 As now worded, §844(i) (1994 ed., Supp. IV) reads in
relevant part:
"Whoever maliciously damages or destroys, or attempts to damage or
destroy, by means of fire or an explosive, any building, vehicle, or
other real or personal property used in interstate or foreign commerce
or in any activity affecting interstate or foreign commerce shall be
imprisoned for not less than 5 years and not more than 20 years, fined
under this title, or both ... ."
We previously construed §844(i) in Russell v. United States, 471
U.S. 858 (1985), and there held that §844(i) applies to a building "used
as rental property," ibid. The petitioner-defendant in Russell had
unsuccessfully attempted to set fire to a two-unit apartment building he
owned. He earned rental income from the property and "treated it as
business property for tax purposes." Id., at 859. Our decision stated as
the dispositive fact: "Petitioner was renting his apartment building to
tenants at the time he attempted to destroy it by fire." Id., at 862. It
followed from that fact, the Russell opinion concluded, that "[t]he
property was ... being used in an activity affecting commerce within the
meaning of §844(i)." Ibid.5
We now confront a question that was not before the Court in Russell:
Does §844(i) cover property occupied and used by its owner not for any
commercial venture, but as a private residence. Is such a dwelling
place, in the words of §844(i), "used in ... any activity affecting ...
commerce"?
In support of its argument that §844(i) reaches the arson of an
owner-occupied private residence, the Government relies principally on
the breadth of the statutory term "affecting ... commerce," see Brief
for United States 10, 16-17, words that, when unqualified, signal
Congress’ intent to invoke its full authority under the Commerce Clause.
But §844(i) contains the qualifying words "used in" a commerce-affecting
activity. The key word is "used." "Congress did not define the crime
described in §844(i) as the explosion of a building whose damage or
destruction might affect interstate commerce ... ." United States v.
Mennuti, 639 F.2d 107, 110 (CA2 1981) (Friendly, J.).6 Congress
"require[d] that the damaged or destroyed property must itself have been
used in commerce or in an activity affecting commerce." Ibid. The proper
inquiry, we agree, "is into the function of the building itself, and
then a determination of whether that function affects interstate
commerce." United States v. Ryan, 9 F.3d 660, 675 (CA8 1993) (Arnold, C.
J., concurring in part and dissenting in part).7
The Government urges that the Fort Wayne, Indiana residence into
which Jones tossed a Molotov cocktail was constantly "used" in at least
three "activit[ies] affecting commerce." First, the homeowner "used" the
dwelling as collateral to obtain and secure a mortgage from an Oklahoma
lender; the lender, in turn, "used" the property as security for the
home loan. Second, the homeowner "used" the residence to obtain a
casualty insurance policy from a Wisconsin insurer. That policy, the
Government points out, safeguarded the interests of the homeowner and
the mortgagee. Third, the homeowner "used" the dwelling to receive
natural gas from sources outside Indiana. See Brief for United States
19-23.
The Government correctly observes that §844(i) excludes no
particular type of building (it covers "any building"); the provision
does, however, require that the building be "used" in an activity
affecting commerce. That qualification is most sensibly read to mean
active employment for commercial purposes, and not merely a passive,
passing, or past connection to commerce. Although "variously defined,"
the word "use," in legislation as in conversation, ordinarily signifies
"active employment." Bailey v. United States, 516 U.S. 137, 143, 145
(1995); see also Asgrow Seed Co. v. Winterboer, 513 U.S. 179, 187 (1995)
("When terms used in a statute are undefined, we give them their
ordinary meaning.").
It surely is not the common perception that a private,
owner-occupied residence is "used" in the "activity" of receiving
natural gas, a mortgage, or an insurance policy. Cf. Bailey, 516 U.S.,
at 145 (interpreting the word "use," as it appears in 18 U.S.C. §
924(c)(1), to mean active employment of a firearm and rejecting the
Government’s argument that a gun is "used" whenever its presence
"protect[s] drugs" or "embolden[s]" a drug dealer). The Government does
not allege that the Indiana residence involved in this case served as a
home office or the locus of any commercial undertaking. The home’s only
"active employment," so far as the record reveals, was for the everyday
living of Jones’s cousin and his family.
Our decision in Russell does not warrant a less "use"-centered
reading of §844(i). In that case, which involved the arson of property
rented out by its owner, see supra, at 4, the Court referred to the
recognized distinction between legislation limited to activities "in
commerce" and legislation invoking Congress’ full power over activity
substantially "affecting ... commerce." 471 U.S., at 859-860 and n. 4.
The Russell opinion went on to observe, however, that "[b]y its terms,"
§844(i) applies only to "property that is ‘used’ in an ‘activity’ that
affects commerce." Id., at 862. "The rental of real estate," the Court
then stated, "is unquestionably such an activity." Ibid.8 Here, as
earlier emphasized, the owner used the property as his home, the center
of his family life. He did not use the residence in any trade or
business.
Were we to adopt the Government’s expansive interpretation of
§844(i), hardly a building in the land would fall outside the federal
statute’s domain. Practically every building in our cities, towns, and
rural areas is constructed with supplies that have moved in interstate
commerce, served by utilities that have an interstate connection,
financed or insured by enterprises that do business across state lines,
or bears some other trace of interstate commerce. See, e.g., FERC v.
Mississippi, 456 U.S. 742, 757 (1982) (observing that electric energy is
consumed "in virtually every home" and that "[n]o State relies solely on
its own resources" to meet its inhabitants’ demand for the product). If
such connections sufficed to trigger §844(i), the statute’s limiting
language, "used in" any commerce-affecting activity, would have no
office. See United States v. Monholland, 607 F.2d 1311, 1316 (CA10 1979)
(finding in §844(i) no indication that Congress intended to include
"everybody and everything"). "Judges should hesitate ... to treat
statutory terms in any setting [as surplusage], and resistance should be
heightened when the words describe an element of a criminal offense."
Ratzlaf v. United States, 510 U.S. 135, 140-141 (1994); accord, Bailey,
516 U.S., at 145.
III
Our reading of §844(i) is in harmony with the guiding principle that
"where a statute is susceptible of two constructions, by one of which
grave and doubtful constitutional questions arise and by the other of
which such questions are avoided, our duty is to adopt the latter."
United States ex rel. Attorney General v. Delaware & Hudson Co., 213
U.S. 366, 408 (1909), quoted in Jones v. United States, 526 U.S. 227,
239 (1999); see also DeBartolo, 485 U.S., at 575; Ashwander v. TVA, 297
U.S. 288, 348 (1936) (Brandeis, J., concurring). In Lopez, this
Court invalidated the Gun-Free School Zones Act, former 18 U.S.C. §
922(q) (1988 ed., Supp. V), which made it a federal crime to possess a
firearm within 1,000 feet of a school. The defendant in that case, a
12th-grade student, had been convicted for knowingly possessing a
concealed handgun and bullets at his San Antonio, Texas, high school, in
violation of the federal Act. Holding that the Act exceeded Congress’
power to regulate commerce, the Court stressed that the area was one of
traditional state concern, see 514 U.S., at 561, n. 3, 567; id., at 577
(Kennedy, J., concurring), and that the legislation aimed at activity in
which "neither the actors nor their conduct has a commercial character,"
id., at 580 (Kennedy, J., concurring); id., at 560-562 (opinion of the
Court).
Given the concerns brought to the fore in Lopez, it is appropriate
to avoid the constitutional question that would arise were we to read
§844(i) to render the "traditionally local criminal conduct" in which
petitioner Jones engaged "a matter for federal enforcement." United
States v. Bass, 404 U.S. 336, 350 (1971). Our comprehension of §844(i)
is additionally reinforced by other interpretive guides. We have
instructed that "ambiguity concerning the ambit of criminal statutes
should be resolved in favor of lenity," Rewis v. United States, 401 U.S.
808, 812 (1971), and that "when choice has to be made between two
readings of what conduct Congress has made a crime, it is appropriate,
before we choose the harsher alternative, to require that Congress
should have spoken in language that is clear and definite," United
States v. Universal C. I. T. Credit Corp., 344 U.S. 218, 221-222 (1952).
We have cautioned, as well, that "unless Congress conveys its purpose
clearly, it will not be deemed to have significantly changed the
federal-state balance" in the prosecution of crimes. Bass, 404 U.S., at
349. To read §844(i) as encompassing the arson of an owner-occupied
private home would effect such a change, for arson is a paradigmatic
common-law state crime. See generally Poulos, The Metamorphosis of the
Law of Arson, 51 Mo. L. Rev. 295 (1986).
IV
We conclude that §844(i) is not soundly read to make virtually every
arson in the country a federal offense. We hold that the provision
covers only property currently used in commerce or in an activity
affecting commerce. The home owned and occupied by petitioner Jones’s
cousin was not so used -- it was a dwelling place used for everyday
family living. As we read §844(i), Congress left cases of this genre to
the law enforcement authorities of the States.
Our holding that §844(i) does not cover the arson of an
owner-occupied dwelling means that Jones’s §844(i) conviction must be
vacated. Accordingly, the judgment of the Court of Appeals is reversed,
and the case is remanded for further proceedings consistent with this
opinion.
It is so ordered.
Notes
1. The question on which we granted review refers solely to Jones’s
§844(i) conviction. See infra, at 3. We therefore do not address his
§924(c) and §5861(f) convictions.
2. Compare United States v. Gaydos, 108 F.3d 505 (CA3 1997) (vacant,
uninhabitable house formerly rented not covered by statute), United
States v. Denalli, 73 F.3d 328 (CA11) (owner-occupied residence not
covered), modified on other grounds, 90 F.3d 444 (1996) (per curiam),
United States v. Mennuti, 639 F.2d 107 (CA2 1981) (same), with United
States v. Ryan, 41 F.3d 361 (CA8 1994) (en banc) (vacant former
commercial property covered), cert. denied, 514 U.S. 1082 (1995), United
States v. Ramey, 24 F.3d 602 (CA4 1994) (owner-occupied residence
covered), cert. denied, 514 U.S. 1103 (1995), and United States v.
Stillwell, 900 F.2d 1104 (CA7) (same), cert. denied, 498 U.S. 838
(1990).
3. Compare United States v. Pappadopoulos, 64 F.3d 522 (CA9 1995)
(application to owner-occupied residence unconstitutional), with 178
F.3d 479 (CA7 1999) (decision below), and Ramey, 24 F.3d, at 602
(application constitutional).
4. See Pub. L. 97-298, §2(c), 96 Stat. 1319 (amending §844(i) to insert
the words "fire or" before the words "an explosive"). The House Report
accompanying the 1982 legislation explained that the original measure,
which was confined to damage caused by "an explosive," had resulted in
problems of practical application. H. R. Rep. No. 678, 97th Cong., 2d
Sess., 2 (1982). In particular, the Report noted a Circuit conflict on
the question whether the measure covered use of gasoline or other
flammable liquids to ignite a fire. Id., at 2, and nn. 5-6.
5. We noted in Russell that the original version of the bill that
became §844(i) applied to destruction, by means of explosives, of
property used "for business purposes." Russell, 471 U.S., at 860, n. 5.
After some House members indicated that they thought the provision
should apply to the bombings of schools, police stations, and places of
worship, the words "for business purposes" were omitted. Id., at
860-861. The House Report accompanying the final bill, we further noted
in Russell, described §844(i) as "a very broad provision covering
substantially all business property." Id., at 861, and n. 8 (citing H.
R. Rep. No. 91-1549, pp. 69-70 (1970)).
6. The defendants in Mennuti destroyed two buildings. One was the
residence of the owner and her family, the other was a rental property.
See 639 F.2d, at 108-109, n. 1. The Second Circuit affirmed the District
Court’s dismissal of the entire indictment. Our decision in Russell v.
United States, 471 U.S. 858 (1985), supersedes Mennuti with respect to
the building held for rental. Regarding the family residence, we find
Mennuti’s reasoning persuasive.
7. In Ryan, Chief Judge Arnold dissented from a panel decision holding
that the arson of a permanently closed fitness center fell within
§844(i)’s prohibition. The panel majority considered adequate either of
two interstate commerce connections: the building was owned and leased
by out-of-state parties, and received natural gas from across state
borders. The panel added, however, that it would not extend the decision
"to property which is purely private in nature, such as a privately
owned home, used solely for residential purposes." 9 F.3d, at 666-667.
Sitting en banc, the Eighth Circuit affirmed the panel’s judgment. See
United States v. Ryan, 41 F.3d 361 (1994), cert. denied, 514 U.S. 1082
(1995).
8. Notably, the Court in Russell did not rest its holding on the
expansive interpretation advanced by the Government both in Russell and
in this case. Compare Brief for United States in Russell v. United
States, O.T. 1984, No. 435, p. 15 ("Petitioner used his building on
South Union Street in an activity affecting interstate commerce by
heating it with gas that moved interstate."), with Russell, 471 U.S., at
862 (focusing instead on fact that "[t]he rental of real estate is
unquestionably ... an activity" affecting commerce).